FedEx Remailers

[Greg Broiles]

At 10:15 AM 9/17/2001 -0700, Tim May wrote:
>On Monday, September 17, 2001, at 09:50 AM, Greg Broiles wrote:
>
>>At 07:23 AM 9/17/2001 +0000, Ryan Lackey wrote:
>>>1) Remailer operators are exposed to new and additional legal threat if they
>>>accept payment for service (right?)
>>
>>"New and additional" might be too strong, but one of the elements of 
>>contributory or vicarious copyright infringement is whether or not the 
>>defendant profited from the direct infringement - and changing remailing 
>>from an unpaid public service to an (apparently) for-profit business 
>>pretty much concedes that point to the plaintiff.
>
>I'm not a lawyer, but why not look at "package delivery services" for some 
>examples:
>
>-- Federal Express, UPS, Airborne Express, Emory International, DHL, etc.
>
>-- none of them are held liable for the contents of what they ship, 
>whether illegal copies of software, pornography, etc.

This isn't an area where we need to start reasoning from analogies or first 
principles - there's already case law more or less directly on point - 
_RIAA v. Napster_ and _RTC v. Netcom_, both of which look back to _Fonovisa 
v. Cherry Auction_ 76 F.3d 259 (9th Cir. 1996), online at 
<http://www.law.cornell.edu/copyright/cases/76_F3d_259.htm> and discussed 
in the Napster context at 
<http://www.salon.com/tech/feature/2000/08/23/napster_fleamarket/>.

The shippers could be held liable for the contents of the packages they 
carry if a plaintiff can establish that they knowingly materially 
contributed to the distribution or sale of infringing items. I suspect they 
avoid criminal liability by cooperating fully with law enforcement, so that 
even where they're technically guilty (or indictable) they have no 
realistic fear of prosecution; and that they avoid civil liability because 
domestic infringers will be attacked by IP holders directly, and foreign 
infringers will have their goods seized during Customs inspections, so 
Fedex et al never really get a chance to contribute to the infringement.


--
Greg Broiles
gbroiles at well.com
"We have found and closed the thing you watch us with." -- New Delhi street kids